I decided while we wait for things to happen in the
Myriad appeal to post the selection below, a Foreword I wrote for the upcoming book
A Question Mark Above the Sun by Kent Johnson, to be released in the next few weeks by Starcherone Books. Because the question of "creation" is vital to my argument about rights of inventors over sequences they didn't write, but merely found and copied, I thought readers of this blog might see the nexus between authorship, creativity, and ownership in other media. I loved writing this, and hope you'll enjoy, and I urge you to support Kent Johnson by buying his book, because it's great:
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A Question of
Authorship?
David Koepsell
The relations between
authors and texts are as complicated as any human relationships –
perhaps even more so. Who counts as an author, and what connects the
author and a text once written are much debated, and long have been.
Academic arguments, for instance, about the “true” author of
Shakespeare’s work rage still, many hundreds of years after the
canon was written. Arguments in academia often focus about who
counts as an author, and who should be so named on journal articles.
Credit for authorship is a much older, established right for which
duties might be owed than, for instance, the relatively modern
institution of copyright. But the connection between author and work
has always been tentative, and theories of literary criticism have
wavered between those who insist upon authorship’s critical
importance and others who maintain the absolute irrelevance of
questions of authorship or author’s intention. Simply put: should
we care who wrote something, really? Does it ultimately matter? And
to what extent are authors really responsible for a text, or
owed some duty of attribution? Finally, are “errors” of
attribution harmful? These are deeply philosophical questions of
ethical import raised intriguingly in the following pages by Kent
Johnson. But before we get to “his” text, I’d like to address
the fundamental, metaphysical and ethical issues underlying both his
work and the controversy around which it dances so eloquently.
For almost two decades
now I have turned my attention to the metaphysics of expressions.
Specifically, I have been interested in what counts as an expression,
and how expressions differ from other sorts of things. In that time I
have mostly concentrated upon the legal category we call
“intellectual property,” which most of us know as copyrights,
patents, and trademarks. In the course of this work I’ve come to a
theory of expression that has implications broader than IP law, which
concerns legal monopolies to profit from expressions. My work has led
me to critique the foundations of IP law for various reasons that are
not relevant to this text. But the broader implication of what I have
come to believe is, namely: expressions, once expressed, do not
belong to the author. To get to this point, and its obvious
implications for the remarkable events behind A Question Mark
Above the Sun, let’s look at what it means to be an author, and
what an expression is, stripped down to their elemental forms, and
without worrying for the moment about what we think ought to
be the case.
An expression is the
extension of some idea into the “real” world. Ideas exist as
thoughts in minds until they are expressed, and then they take on
lives of their own. In fact, this is why modern intellectual property
(IP) laws were created: because once an expression “leaves” the
author, it is simply no longer physically (and maybe morally) beyond
the realm of his or her dominion. The expression is free for all to
adopt, appropriate, alter, or re-express. So we should be skeptical
of claims about any “exact” connection between an author and an
expression. This is certainly true for expressions that have been
around a long time. The works of Homer, for instance. Homer’s works
were recited for ages before they were written down as poems and
songs that were part of an oral tradition that predated modern,
mass-produced copies of either. Whose expression is “The Illiad”?
even assuming a largely mythical Homer did exist, “his” epic
poetry was told and re-told many thousands of times, doubtless
changing over time, with new riffs and tweaks added by balladeers
over the ages before someone first published a written copy, or
before a standard Homeric canon was created some centuries later.
Then translated, the meanings and nuances added or lost are the
result of the translators. Whose voice remains? Is it Homer?
Of course Homer’s
works are no longer truly Homer’s, and may never have been. In a
very real sense, they ceased to be Homer’s (or the author(s)?) once
released into the wild. There they took on new forms, and their
current iteration, while still attributed to some author we call
“Homer” (or someone, the joke goes, not Homer but with the same
name) is a text whose authorship is very much literally doubtful. It
is the work of legions, now, unnamed and unimportant in the grand
scale of literature. Works such as Homer’s, like the Bible, for
example, historically remote and oft-changed, altered and translated
over millennia, are most clearly distinct from the expressions of
their “original” authors. These sorts of works raise not just
metaphysical, but ethical questions about the role and
importance of authorship to a particular text. Does it matter,
for instance, if Homer did not write, originally some particular
verse or phrase, or for that matter, Homer’s works in their
entirety? Is there some right or duty relating to the first
expression of some idea, and its ultimate fortune?
While we may be
responsible for our expressions when they are made, the root of that
responsibility is in the choice of making the expression and
in its initial content. It is a terrible risk to express an idea, one
imbued with more chance of failure, ridicule, and numerous other
potential liabilities than with “success.” Success generally
means finding an audience that appreciates or at least acknowledges
the expression. Most expressions drift away into the winds, never to
be remembered. This is often thought of as the worst sort of failure
for an author. But is this sort of failure linked to the fate of the
expression, or the fate of the expression’s linkage to the author?
The answer to this, which is in many ways the question underlying
Kent Johnson’s musings and research, depends on what is important
to the author as much as what is appreciated by an audience. What if
there is no one “Homer” or what if Shakespeare either didn’t
write some or all of Shakespeare’s works? What does this mean for
us, as an audience, the worth of the works, and the value of Homer or
Shakespeare as poets?
Most authors want to
be connected to their works. Their expressions are personal, and this
is the great risk of authorship. The courage to express means also
accepting the great risks of expressing. Oblivion, ridicule,
criticism, and obscurity are one’s most likely fates, but all
authors dream of making some lasting impact on the world through
their expression in some medium. Sculptors and architects do so with
real, lasting monuments, and those who write attempt to do so with
materials more ephemeral. Balladeers’ and dancers’ mediums of
expressing are more fleeting still. Some people believe that taking
the risk of expressing an idea in some medium requires that the
community of potential observers and appreciators acknowledge that
risk through such things as attribution and more recently,
monopolies. Some authors (and clearly, I am using this term very
loosely because I view expressions as occurring in many types of
media, at the hands of a range of artists and even inventors) choose
to produce their expressions anonymously, or care little for their
attribution. Their reasons may be many and varied. Perhaps they fear
the potential risks, or maybe they see the expression itself as being
more important than attribution.
The question for us,
if we are concerned with the ethics involved in “proper”
attribution, is: is attribution of expression to author a moral
requirement? Improper attribution can be a moral wrong where an
expression is harmful, somehow. Attributing a libelous expression
falsely is clearly wrong, as it passes off a responsibility for harm
to an innocent party. Attribution, or the naming of the original
author, is not only often imprecise (because as we saw above,
expressions are changed over time, and may accumulate numerous
authors) but is not morally required. Authors might wish to be
associated with their expressions, but we are under no positive
duty to ensure they are.
Part
of the risk of expression is that the thing expressed lives a life of
its own, flitting off into the wild, morphing over time, affecting
audiences in any number of unpredictable and unintended ways. An
author could no more ethically take credit for unintended good
effects than for unintended bad ones. Once “free” of the author
(once expressed) the expression and author are related only
tangentially, as a perhaps interesting story about a particular
expression’s origin, but little more. Our expressions live on,
populating the world, replicating, thriving without us, and we should
be glad of this. Just as with children, for whom we might be proud as
they grow, thrive, develop, and go about their lives; our expressions
live on, thrive, die, or remain unknown despite our hedonistic wishes
for immortality. Children are not their parents, and their successes
or failures speak only partially to our success or failure as
parents. Authors and parents want to claim credit for the successes
of their expressions or children, but allowing them to succeed (or
fail) without the necessity of taking that credit represents a
greater moral choice.
In fact, this is the
realization of much modern literary criticism and its disentangling
of author, intention, and expression. The work speaks for itself, and
while we might very much enjoy trying to discern the author’s
intention, doing so is epistemologically impossible, perhaps even for
the author at the time of expressing. Kent Johnson takes this to its
logical and moral extreme, questioning the rights, duties, and nature
of authorship and attribution in general. He does so from firm
ground. Authors have long toyed with the nature of their own
authorship, and created personae and pseudonyms to make their
expressions on their behalf, implicitly acknowledging the absurdity
of any firm connection between expression and author. Araki Yasusda,
who may or may not have been a Japanese poet whom Johnson translated,
is but one example, and the story Johnson weaves to make his
political and moral case about “O’Hara’s” poem is both
serious philosophical inquiry and wrenching satire.
Modern political
economy and the nature of profits in the publishing world have
encouraged adopting a myth about the relation of author to work. This
myth, destroyed effectively by Johnson, and undermined by the
historical examples I have noted above, is that expressions are the
author’s and that we must somehow acknowledge their conception to
them and their profits. We choose to do so now for complex
reasons, and in so doing may very well undermine the moral worth of
creative expression. Blockbuster authors are now often industries
around which publishing empires rise and fall. For instance,
Bloomsbury, which published one of my books, has made a fortune and
grown significantly propelled by the profits of Harry Potter.
J.K Rowling is now inextricably associated with the Harry Potter
volumes and movies. Rowling is as much a brand as the books
themselves, expertly crafting a persona and canon that will, for the
foreseeable future be known both as her and hers. How does Harry
Potter stack up to Beowulf?
I’ll take a great
risk and suggest that in the next thousand years or so, if humans
remain, and English is still read, Beowulf will continue to
have an important role in our culture and Harry Potter will
not. J.K. Rowling may well be regarded as a successful author in her
time, and Harry Potter valued for introducing a generation of
kids to long-form fiction reading, but as great literature whose
impact on a culture is historically important and meaningful,
Beowulf, whose author is unknown, is a monument unlike most
modern works. Were I the author of Beowulf, if indeed there
was a single author, I’d prefer that sort of legacy to Rowling’s.
While works of greatness uncoupled with fame or fortune do not pay
the bills, they are the reason most good authors take the risk
of authorship to begin with. But there are few truly good authors,
and fame and fortune are the current gods to which we worship. Now
here comes the proselytizing, and forgive me, I am not primarily
a fiction author (though I have dabbled). Authors should strive
neither for fame nor profit. Thus, attribution ought not to be an
author’s primary concern (or even a concern at all), but rather the
expression itself ought to be an end in itself, rather than a means
to some other end. The author’s primary duty overrides claims of
obligations owed by others, beyond the duty not to falsely attribute.
If the author’s duty not to claim rights to expressions is
true, as I claim it is, then there is no harm in even false
attribution where there’s no harm. Yes, some artists want to be
known for their works, but more often than not, true artists want
their works to be known.
Consider Banksy.
Banksy is famous for his works, iconoclastic stencils that began as
graffiti, but are known and sought the world over as art. But Banksy
is a pseudonym, and the ongoing power of his work stems in part from
his carefully crafted and preserved anonymity. In the film Exit
Through the Gift Shop, we see Banksy’s hooded figure, and
marvel at the rise of an obsessive-compulsive documentarian of
graffiti art’s own rise to the heights of artistic success, trading
on the modus operandi of Banksy, but without so much talent.
Of course the joke may well be on us, as the whole “documentary”
seems ultimately to have been a charade of sorts, making fun of the
art world, fame, glory, money, and the role and importance of critics
in turning the previously banal into gold. This film, like Orson
Welles’ F For Fake, uncovers the ludicrous extent to
which we attach names and histories to expressions, and how this
turns something into a treasured piece of “art.” Welles’ “film
essay” (as he called it) itself plays with notions of authenticity
and authorship, focusing on famous fakers such as Elmyr de Hory, one
of the twentieth century’s most successful art forgers. News that
many of the forgeries that de Hory had sold ended up in famous
galleries throughout the world both enraged collectors and urged them
to be silent. So many “authentic” Matisse’s and Picasso’s,
all suddenly called to question. The value of each as a market
commodity must now be forever in doubt, even if the artistic value of
any of them might be unscathed.
What is it after all
that makes a particular Vermeer valuable? Han van Meegeren, who faked
and forged dozens of Vermeers, sold them successfully to educated
collectors and museums before he was caught. Was it the signature
that made the painting a worthy piece of art? Was it the art itself?
Orson Welles’ great works were fakes of a kind as well, under the
guise of which he could more successfully treat delicate subject
matters, like the story of William Randolph Hearst under the very
thin guise of Citizen Kane. Clifford Irving, who wrote the
book Fake! About de Hory, became Welles’ subject in F for Fake when his attempt to publish an official “biography”
of Howard Hughes becomes exposed as a fraud. And around and around we
go. Author, work, truth, fake, art, critic… the lines are forever
blurred when we begin to grapple with the metaphysical natures of
each, and the ethical duties of author and audience.
Johnson upends and
dispels all the traditional notions of authorship and its role in
creation, scandalizing many in the process. This is what happens when
the status quo, by which the current business of
publishing continues and profits some, is challenged at its very
base. It is a final deconstruction, of sorts, to claim as he does
through the thin veneer of fiction, that there is some sort of
conspiracy at work protecting the origin of a great poem. There is a
conspiracy at work. There are several, in fact, including the twin
conspiracies of convention and commerce, according to which authors
are the inventors of the works they create and, like Thomas
Edison, should profit through a state-supported monopoly over their
“creations,” as well as some social-institutional monopoly over
its essence. To pretend there is some sort of strict tie, some
ownership, some moral right to protect and defend an expression once
expressed is a form of authorial authoritarianism. It is the
antithesis of free thought. Ideas don’t want to be free, they just
are. Part of the risk of expression involves the loss of control.
But authors who aspire
to Homer’s fate take that risk and launch their works into the
winds and hope. Hope is the thing with feathers, and great works take
flight without legal institutions, critics, or conventions to buoy or
defend them against history. The freedom of expression is perhaps our
most basic right, because it intercedes at the barrier between the
mind and the body, where we choose to bring ideas into the world, but
it comes with a certain responsibility too. “Our” ideas are only
genuinely ours to the extent that we keep them trapped in our minds,
and even so, they are likely not just ours. More often than not, they
come from somewhere and someone else. Great ideas turn up
historically in numerous places at once. Newton, who (may or may not
have actually) said he stood on the shoulders of giants, quarreled
with Leibniz for years about the origins of calculus. Their
approaches to the problems of calculus were different, but solved the
same problems using differing methods. Today, both Leibniz and Newton
are celebrated, and calculus (whoever “created” it) helps propel
rockets to the planets and beyond. Newton, and Leibniz, and every
other scientist before and since has stood on the shoulders of
giants: their peers, and their betters, who preceded them. Science is
an evolving narrative, constantly refined but never perfected, a
cycle of observation, hypothesis, synthesis, theory, observation,
falsification, hypothesis, and so on.
Literature too is an
evolving system, a dialogue of sorts among authors and voices
within a tradition (sometimes encompassing numerous languages)
over time. Ulysses is Joyce’s homage to the epic, borrowing
from and imitating various styles, merging fiction, politics,
religion, and culture in a new tapestry, the parts of which are
neither new nor original. Ulysses is Odysseus, and
Joyce plays Homer, wrapping an ordinary Dublin day in the cloak of
epic. It was scandalous too, for different reasons, daring to elevate
the bodily and the base, and insert them into epic. Since its
original publication, Ulysses has changed, and the version
that many of us grew up with as the “official” version has been
replaced by a work alleged to be more closely aligned with Joyce’s
own intention. Are there two Ulysses? Which is the real one?
And who wrote each? Ulysses evolves, even as the Homeric epics
have. Like all expressions, it is susceptible to revision and change,
and Joyce’s intentions are both unknowable and irrelevant. Only a
certain cult-like adherence to the myth of some strong link remaining
between author and expression will defy this inevitable tendency. To
defy this is to deny the true status of expression and to insist on
some morbid, unnatural stasis in our culture and its artifacts.
And so what if? What
if Johnson’s story is “true” to the extent that Koch wrote
O’Hara’s haunting, prescient poem as an homage, an act of
beneficence, the selfless act of an author who recognizes the
overarching duty to express free of any egotistical desire for
attribution? Is positing such an act of friendship, honor, and beauty
a crime? Is it even just ethically wrong or suspect? I think it’s a
lovely idea, and Johnson takes the risk as any author does of
expressing his idea in a creative way. In so doing, he enriches the
culture with literature, raises important philosophical questions, as
is his wont, about the nature, duty, and obligations of authorship,
and provokes further inquiry and wonder about a literary moment. It
is interesting to ponder. It would be, as Johnson suggests, a truly
supererogatory act if true. It is useful to consider the nature of
acts through fiction and non-fiction. Ethicists do this all the time.
We posit trains, and multiple tracks, and sacrificing 1 person versus
5, we compose outrageous hypothetical situations so that we can
consider the ethical issues at play. These narratives are sometimes
ridiculous and disturbing (as in the various “trolley” examples,
involving choices between killing numbers and types of bystanders who
happen to be stuck on railroad tracks) and even scandalous
(cannibalism on lifeboats, etc.). But these stories are meant to
provide insight into values by forcing us to consider what roles
intentions and consequences mean for ethical decision-making.
Philosophers exchange, comment upon, revise, and embellish
hypothetical examples used in ethics research. The history of
philosophy in general, as in all scientific research, is a history of
footnotes, critique, and revision of ideas whose geneses are often
now obscure – standing on the shoulders of giants. Claims of
originality must be looked at skeptically.
Johnson crafts a
fictional account (a hypothesis of sorts) as a means of inquiry, as
scientists do, as philosophers do, to examine a possibility. Like
good science fiction and good science as well, it is founded upon
entirely plausible circumstances, with some interesting and unlikely
drama thrown into the mix from literary license. Like good
literature, it launches itself as an expression into the winds of
history and opens itself up for our use as we see fit. The laws these
days still allow this sort of supposition, though we should be
mindful about trends that could silence it. Laws are constantly
refined to benefit the monopolists of expressions. Science itself is
becoming monopolized by desperate academic presses intent on placing
profit over the ethos of science, which has hitherto been open and
free. Copyrights have been extended time and again, having begun with
terms of 14 years, and now thanks to the late Sonny Bono’s famous
lobbying for an extension of the copyright term just before Disney’s
Mickey Mouse was due to lapse into the public domain, the monopoly
for expressions is now the entire lifetime of an author plus an
addition 70 years. The public domain, those expressions that are our
not only morally but legally to do with as we will, is shrinking by
degrees.
The world of free
expression must push back against both the tyranny of conformity and
the authority of the law. Law that seeks to constrict our free
expression must be especially distrusted. Threats to free expression,
and the freedom of expressions, come both from attempts to
monopolize, and from those who seek to squelch criticism. Expanding
notions of libel or slander, reputation and celebrity rights, and
other attempts to prohibit the use of that which ought to remain in
the public domain, all undermine authors’ moral dignity, and the
duty to express. Anything that constrains an author from expressing
is suspect. Expressions, except when they are truly libelous (false
claims that harm a reputation), are risks for both the author and
audience. The author takes the risks described above, that they will
succeed and live on unencumbered by the author, or dissipate and die,
unknown and unheard. The audience takes a risk that the expressions
they consume will change them somehow, and affect them in some deep
way that stays with them forever.
The (morally) best
authors (and inventors) embrace a radical view of free expression,
where they recognize the risks and rewards of creation. God took such
a risk, in the Judeo-Christian tradition, creating humanity and
giving us “free will.” Because Adam and Eve chose the path
offered to them via free will, and consumed of the tree of the
knowledge of good and evil, we are here. It was God-as-author’s
risk in creating a free expression that humanity would act beyond His
control, His command, and become creators too.
Our
free will embodies a moral imperative to speak what we believe is the
truth, or important, despite the consequences. The corpus of
expressions created since the beginning of time are a testament to
man’s role as creator, channeling ideas into the world upon which
each new generation of creators builds. Who is the author of our
culture, or the entire history of human expression? No one person is,
but our culture is the sum of all. It is the collective consciousness
made manifest in every medium conceivable, told by a litany of
voices, creating an orchestra of ideas, a symphony of words,
pictures, stories, poems, statues, and science. No greater monument
to humanity exists. We cannot bottle it up or create ties binding any
one work to any one author.
Homer,
Joyce, Yasusda, God, Shakespeare, Johnson, they are all only the
genesis, but creation is now beyond their control. Expressions live
on their separate lives, unchained and free, evolving and uncredited,
and this demonstrates the dignity, duty, and the courage of being a
creator. Let us celebrate then the risk of creation, and the duty to
let go, the allow our expressions their separate lives, and build a
common culture of communication through our evolving media, content
that there are expressions -- these supremely human, flawed, and most
permanent cultural artifacts. They will survive, like the words on
Ozymandias’s fallen statue, which survive even while a culture and
its king’s visage lie in dust. They will speak of us long after we
are gone, and speak well only if we let them.
Johnson’s
book celebrates the unbound word, our Promethean glory as creators
free of the debt of credit. His own act of creation, obscured as
truths wrapped in fictions, touches upon the duty and ethos of the
author and audience, spinning together, weaving something beautiful,
and alive, new, and unchained. Somehow and somewhere, beneath or
because of the cognizable expressions, imperfectly capturing our
ideas, the truth will eventually be known. We are lucky if we get
glimpses, and good authors, when they are especially fortunate
or particularly talented, may give us those glimpses.
